AADC 2024 Summer Newsletter

INDEX

SUMMER 2024 NEWSLETTER Page 2: Message From the President Page 3: Administrative Agency Deference After Loper Bright Page 4: Be Careful With the Word “Draft” Page 6: Spotlight Column Page 10: Tales From South of the Gila Page 12: AADC’s 2024 Annual Meeting Recap

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COMMON DEFENSE | Fall 2024 | azadc.org

A Message From the President I routinely see legal commentators and legal publications suggest that the law is changing rapidly. New technology, such as artificial intelligence and virtual hearings, will reshape how we all practice law and litigate cases. I have no doubt that these tools have changed and will continue to change the practice of law. But they are still tools, and they still must be wielded by a skilled practitioner. AADC’s past and current members represent some of the most skilled practitioners here in Arizona.

The mission of the AADC is to provide those skilled practitioners in the defense bar with enrichment and support through social and networking events, CLE opportunities, and participating in charitable causes. The recent AADC Annual Meeting in May of 2024 provided us with insights into important issues such as law firm Diversity Equity and Inclusion, the changing face of the United States Supreme Court, the ethical challenges of artificial intelligence, and jury trial strategies. These presentations all led to lively discussions and opportunities to share knowledge with our fellow colleagues in the beautiful setting of Papago Park.

I am honored to serve as the incoming president of the AADC for 2024-2025 and to continue the AADC’s mission. The AADC is excited to continue providing numerous enrichment opportunities this year, including the Fall Kickoff Reception honoring the AADC’s past presidents on September 26, 2024, the ALS Barry Fish Charity TopGolf Tournament on October 17, 2024, and the Phoenix Judicial Reception which will be held in conjunction with the Arizona Association for Justice (the plaintiffs bar association) on December 4, 2024. I look forward to meeting all our members and valuable sponsors at these upcoming events.

If you are long-time AADC member, thank you for membership and your contribution to what makes the AADC such a vital organization. If you are new to the AADC, welcome—we’re glad you are here. If you are one of those skilled practitioners that is not an AADC member and you are reading this newsletter in the lobby one of our member’s firms, come join us.

The AADC wishes you a successful remainder of 2024 and prosperous 2025.

Shanks Leonhardt Sanders & Parks AADC President 2024-2025

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The Murky Future of Administrative Agency Deference After Loper Bright CHRISTOPHER L. GRIFFIN, JR.| DIRECTOR OF EMPIRICAL LAW & POLICY, UNIVERSITY OF ARIZONA, JAMES E. ROGERS COLLEGE OF LAW and informed judgment to which courts and litigants may properly resort for guidance.” The Loper Bright Court has left this methodology intact.

So, why did Chevron deference so offend the constitutional order? Chief Justice Roberts once again sought answers from his institutional idol, the Great Chief Justice John Marshall. Roberts started with the enduring principle of Marbury v. Madison; it is “emphatically the province and duty of the judicial department to say what the law is.” In other words, only judges can wield the ultimate authority to decide controversies over statutory texts.

On June 28, 2024, the U.S. Supreme Court fashioned a tombstone for the once-vaunted decision in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., that “no one can miss.” The decision in Loper Bright Enterprises v. Raimondo, arrived just three days after Chevron celebrated its 40th birthday. The question now for the bench and bar is whether Loper Bright will keep Chevron’s ghosts interred. In this piece, I review the Court’s reasoning in Loper Bright as well as the arguments from its discontents on the progressive wing of the Court. I then offer a few reasons—rather than predictions—why forecasting the long-term impact of the new regime will be difficult.

The two steps embedded in Chevron deference were straightforward in theory, if not always in practice. First, a court reviewing a federal agency’s interpretation of a statute would decide if the text unambiguously spoke to the issue at hand. If so, there was nothing left for the court to do. If not, the court had to defer to the agency’s interpretation if it was “based on a permissible construction of the statute.” The Loper Bright opinion also cites so-called Skidmore “deference,” which allows courts to treat agency interpretations as “a body of experience

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continued on page 7

Be Careful With the Word “Draft” You may even get a bad performance review, and you’ll definitely have to fix the draft quickly, so it will mean more work for you to do.

Here’s what I recommend:

🚫 Assume that “draft” does NOT mean “rough draft.”

Unless you’ve received clear instruction to the contrary, assume that “draft” means that you should write and deliver a document that is:

Amanda Haverstick is a 20-year veteran Big Law litigator who founded and runs Writing Law Tutors LLC, a legal-writing coaching company that helps litigators and law students become better writers. Amanda also publishes a monthly newsletter, “3 Bullets” (available for sign-up at Dear1L.com), and she has authored the forthcoming book, Dear 1L: Notes to Nurture a New Legal Writer.

Dear Legal Writer, As a junior lawyer, you’ll get asked to “draft” a lot of things for more senior attorneys—memos, briefs, letters, emails, outlines, etc.

It’s imperative that you understand, in advance, everything the assigning attorney—and the firm—expects from your “draft.”

If you get it wrong, the result can be — a pissed off senior attorney, — bad blood in the waters, and — a surprised and caught-off-guard you.

— complete and polished; — perfectly proofread; — properly formatted; and — ready to file.

TAKEAWAYS: 1) “Draft” can mean totally different things depending on your law firm, department, and particular assigning attorney.

2) It is YOUR job to get clarity on what “draft” means for your assignment.

3) Make any uninformed assumptions about what “draft” means, and you risk steep consequences.

Fondly, Amanda

💌

P.S. If you like the above, you’ll like my new book: Dear 1L: Notes to Nurture a New Legal Writer. You can pick up the Kindle or paperback here: https://a.co/d/3vn0MxA #DearLegalWriter

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October 9th 12PM - 1PM Utilizing Meteorlogical Data in Litigation Greg Quinn, Director Meteorology Practice Rimkus Consulting Group

Spotlight Column CHRISTIAN, DICHTER & SLUGA ANNOUNCE NEW SHAREHOLDERS

Christian, Dichter & Sluga, P.C. (CDS) recently announced that partners Jeffrey Hutchins, J.P. Harrington Bisceglia, and Amanda Taylor have been made shareholders of the firm.

Each newly elected shareholder is licensed in multiple states, and all of them have been integral in the firm’s expanding regional insurance practice.

Jeff, J.P., and Amanda have been recognized by SuperLawyers for many years. Additionally, Amanda is recognized by Chambers USA, while J.P. and Jeff are recognized by Best Lawyers. And the accolades keep on coming!

Jeff Hutchins is an Arizona native and University of Arizona Law School alumnus. He has been with CDS for over 12 years. His practice encompasses insurance defense, bad faith defense, and commercial litigation. His efforts recently resulted in a directed verdict in his client’s favor in an insurance bad faith trial, which was upheld on appeal. He is licensed in Arizona and Texas and is a co-chair of an ABA subcommittee within the Insurance Coverage Litigation Committee.

J.P. Harrington Bisceglia grew up in New York City and attended the University of San Diego for both undergraduate and law school. She currently serves on the Board of Directors of the Arizona Association of Defense Counsel. She has been with CDS for 8 years. Her practice encompasses insurance coverage analysis, bad faith defense, continued on page 8

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continued from page 3 Roberts then turned to § 706 of the Administrative Procedure Act (“APA”): “the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.” The APA is the Rosetta stone for all of modern administrative law. If its own terms insist that courts, not agencies, have the last word, how can agency readings ever win? With this one-two punch, the Loper Bright majority held that Chevron simply cannot be squared with the sacrosanct role of judicial review. In closing, the Chief brushed aside stare decisis considerations, both because it contradicted the APA and because the Court’s own attempts to refine Chevron “only added to [its] unworkability, transforming the original two-step into a dizzying breakdance.”

Justice Kagan’s blistering dissent (by staid administrative law standards) took the majority to task for abandoning principles of stare decisis. The former Harvard Law admin professor bemoaned that “[a] rule of judicial humility gives way to a rule of judicial hubris.” She also lambasted the Court’s opinion for diminishing the role of agency expertise, a wealth of knowledge that Justice Kagan believes courts don’t possess. Broadly speaking, the dissent cast the Court’s overruling of Chevron as a slap in Congress’ face, a dismissal of the legislature’s preference that agencies fill in statutory ambiguities.

The administrative law professoriate will surely debate Loper Bright’s merits and legacy for decades to come. How, though, should the legal profession prepare itself for this new landscape. My initial response is the lawyer’s favorite: it depends. More than that, however, prior research and the nature of Chevron deference itself suggest that any impact could be fairly subdued.

The first reason is based in Chevron’s nuances—the ways in which little about the two-step framework was truly outcome-determinative. Not only could a court decide at Step Two that an agency interpretation wasn’t “based on a permissible construction of the statute,” commentators also pointed to a Step Zero at which a court could decide whether Chevron’s rules applied at all. Briefly stated, the Court tried to refine over the years a rule holding that Chevron only applied when 1) an agency interpretation followed formal procedures and 2) the

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agency was acting with clearly delegated authority from Congress. Even that slight wrinkle ensure that “deference” wasn’t necessarily the norm.

The second comes from empirical research about Chevron’s impact. High-quality studies of the Chevron regime essentially revealed that deference was highly dependent on the reviewing judges and the issues at hand. Whether federal circuit panels invoked Chevron varied with the political direction in which the agency decision pointed. Another study concluded that the Supreme Court treated the deference regimes less like binding precedent than another tool in the statutory interpretation toolkit. A third found that the Supreme Court justices’ votes were significantly correlated with the partisan preferences of their nominating President. If Chevron had truly created a four-decade consensus on the federal courts, we wouldn’t necessarily observe so many discrepancies in outcomes. In fact, one legal scholar opined that deference had been inching toward irrelevance by the start of the current decade.

All of this is to say that are too many variables at play to confidently predict how the courts will rule in the new world of Loper Bright. It’s unclear whether that new world will be a brave split from the past or the seamless continuation of earlier trends. Much will turn on whether agencies become more conservative when interpreting ambiguous statutes and, perhaps, the identity of who appoints future members of the federal judiciary. The only unalloyed truth is that Chevron’s black letter law is dead. Long live Chevron (?)

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and insured defense. She recently obtained an arbitration award in favor of a client that was significantly less than the last offer to settle and hundreds of thousands of dollars lower than the amount requested. She is licensed in Arizona and New Mexico.

Amanda Taylor grew up in Illinois and attended law school at Arizona State University. She has been with CDS for 3 years. Her practice focuses on insurance coverage analysis and bad faith defense. She recently obtained for her insurer client a dismissal of a declaratory judgment action under a professional liability policy in New Mexico without any payment of coverage funds. She is licensed in Arizona and Illinois and will soon be licensed in New Mexico.

Managing Partner Gena Sluga shares her thoughts following the election of the new shareholders: “Each of our new shareholders have been integral to our firm’s practice and have been respected leaders in the firm for years.

Our firm was established in 2005 by founding partners Doug Christian and Steve Dichter, and we’re grateful for their work establishing a tradition of excellence. Adding Jeff, J.P. and Amanda to our leadership team will continue that tradition with their talent, integrity, and vision.”

For the last nine years, CDS has been a certified women-owned business by Women’s Business Enterprise National Council (WBENC) and a law firm member of the National Association of Minority and Women Owned Law Firms (NAMWOLF). CDS is proud to continue that tradition with the addition of two more female owners to the firm’s leadership.

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SIDEBAR By: James D. Smith, Esq. Osborn Maledon Lawyers can be a skeptical bunch, but that skepticism sometimes is by design. As lawyers—especially young lawyers—we advocate our clients’ positions. We want to make the most persuasive arguments, to prove points, and extract concessions from opponents. But we’re not guns for hire. We must make “reasonable inquiry” before we sign something, including determining that factual support exists.

Ariz. R. Civ. P. 11(b). We can’t advocate positions that are frivolous, ER 3.1, knowingly make false statements to the tribunal, ER 3.3(a)(1), or fail to correct false information from a witness, ER 3.3(a)(3). How do we implement those concepts and responsibilities?

An initial step is asking our client difficult questions. People tend to shade their versions of events to favor their view.

Imagine you’re the opposing counsel cross-examining your client—ask those types of questions. Do relevant emails, text messages, social media posts, and other documents exist? If so, review them. If your client’s perspective doesn’t reconcile with that information, ask for explanations. Do witnesses (especially unbiased ones) exist? Will their version of events match the clients?

It’s also good to remind clients in this digital age that the other side will obtain the client’s electronically stored information. “The other side probably will obtain your cell phone data to see if you were online when the collision occurred. What will it show?” And emphasize that trying to destroy ESI will lead to sanctions and make things worse. As lawyers, we often see people get caught when they try to “clean up” their digital footprint. You might be surprised at how many people still believe that they’re going to get away with it.

Last, this process is constant. As you learn more facts through discovery and disclosure, you must ask your client more questions. You knew about facts A, B, and C when the case began, but now you’re six months into discovery and just learned that D, E, and F also exist. Do those new facts affect your case presentation and your ethical obligations?

None of these steps means that you can’t advocate for your client. You won’t be an effective advocate if you’re blindsided by information that your client didn’t share with you. And remember that you have professional and ethical obligations, and a professional license on the line. Also, you’re more than an advocate; you’re also a counselor. You can’t effectively counsel your clients if you don’t probe their claims at least as forcefully as your opponent will.

Tales From South of the Gila BY: PETER COLLINS This edition will focus on two issues near and dear to my heart, but not necessarily specific to Tucson. There just isn’t much happening in these hot summer months on which to report.

However, there is some very good news out of the United States District Court on the issue of “reasonable medical expense”. As you know, AADC and many of us have followed this issue carefully, and Nate Meyer has done excellent work battling Plaintiff counsel over their proposed rule changes at one of the State Bar’s Rules Committees. Judge Susan Brnovich ruled last month that Plaintiff could not present the medical bills themselves without supporting testimony that they were reasonable. In Romes v Garrison Property and Casualty Insurance Company, 2024 WL 3183132, June 25, 2024, she held: In other words, without additional evidence supporting reasonableness, medical bills cannot even be presented to the jury, and therefore the jury cannot consider them when calculating damages.

Thus, the Judge accepted the defense position interpreting Larsen v. Decker, 995 P.2d 281 (App. 2000), exactly as we have argued it in multiple courts.

This decision is certainly not binding on Arizona Superior or Appellate courts, but it is excellent persuasive support for our positions in many cases.

It also suggests that courts may be more open to permit the defense to introduce evidence from qualified experts as to the reasonableness of claimed medical expenses. Several Tucson judges have already indicated a willingness to allow such defense experts (admittedly during Settlement Conferences).

Second item is the Arizona State Bar College of Trial Advocacy. This year the College has a full faculty of highly qualified trial lawyers, judges and two Arizona Supreme Court Justices, and a full roster of students. The College initially ran for two weeks in Tucson, and was organized and managed by Ted Schmidt and Bill Jones, among others. It was outstanding, but the Bar’s financial circumstances forced a suspension of the College.

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In 2005, a committee organized by State Bar President Chas Wirken and the Trial Practice Section re-started the College.

Its format is essentially the same as the original, except that it has an accelerated schedule, compressing two weeks of challenges and learning into one week, all in Phoenix. The College culminates with a jury trial with live public jurors. It is managed by Judge Rebecca Albrecht (ret.) with Co-Chairs Susan Corey and Jorge Franco, and a working Board of trial lawyers from both sides of the aisle.

The College features a superb faculty and interactive training sessions with real world scenarios, real expert witnesses (from Exponent), and in-depth individual training sessions for students. Enrollment is closed for this year but will be available for next year. Stay tuned!

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AADC’s 2024 Annual Meeting Recap

The AADC’s 2024 Annual Meeting, Dedicated To Your Success, was held May 9, 2024 at Papago Golf Club. The afternoon meeting started out with a networking lunch followed by a panel discussion on “Quorums Not Quotas: Rethinking Diversity in the Workplace.” The panel was moderated by Jessica Kokal of Broening, Oberg. The panel solicited anonymous questions regarding diversity issues prior to the meeting and addressed those questions live.

The program also featured a presentation by Lynn Allen and Leslie Harrach from Tyson & Mendes on strategies to counter the increasing trend of “nuclear verdicts” across various jurisdictions. Their session focused on understanding the psychology behind preventing these large verdicts.

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Professor Christopher Griffin, Jr. from the University of Arizona, James E. Roger College of Law gave a timely and wide-ranging discussion on the current dynamics (cases and personalities) of the U.S. Supreme Court.

Finally, Scott Rhodes of Spencer Fane led a presentation on avoiding ethical implication of AI in your law practice. His talk covered issues related to client confidentiality, work product privilege, state regulations, fees, and communication challenges.

The meeting wrapped up with a lively reception on the patio at Papago Golf Club.

Many thanks to the AADC’s sponsors for helping make the 2024 Annual Meeting a success including: AccuMed, Advanced Medical Group, Ankura, ARCCA Engineering Solutions, Augspurger Komm Engineering, Avalon Health Economics, DigiStream Investigations, ExamWorks, Exponent Forensic Engineering, Integrated Medical Evaluations, Rimkus Forensic Consulting, Verum Biomechanics, Vocational Diagnostics, Ward Cornett & Associates, and YA Engineering Services.

Mark your calendar for the AADC’s 2025 Annual Meeting on May 1, 2025. More details will be announced soon.

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Congratulations to all the law students and clerks who recently took the July 2024 bar exam! We wish you the best of luck with your results. We also extend a warm welcome to the newest members of the Young Lawyers Division (YLD)!

A special thank you goes to Stephanie Baldwin, immediate Past President of the YLD, for her outstanding leadership.

Under her guidance, the 2024 AADC Annual Softball Tournament was a tremendous success, raising nearly $9,000 for Southwest Human Development. We also appreciate the efforts of all YLD board members who contributed to the success of YLD events over the past year.

The YLD is excited to announce that planning is underway for the 2025 AADC Annual Softball Tournament. Stay tuned for details on the date and team registration. Additionally, we will be hosting several CLE events over the upcoming months and will share more details on these programs soon.

We encourage new lawyers to join the YLD and become actively involved. It’s a fantastic opportunity to connect with your peers and enhance your legal skills as you advance in your legal career.

We look forward to seeing you at our upcoming events!

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Eadie Rudder Carpenter Hazlewood

Dan Coumides Gust Rosenfeld

Parker Bunch Cavanagh Law

Adam Reich Lewis Roca

Susan Dana-Kobey Burch & Cracchiolo

Steven Crocchi Clyde & Co

The Arizona Association of Defense Counsel 6711 E. Camelback Road, Suite 64, Scottsdale, AZ 85251 602-743-3700 | admin@azadc.org

Doreen Myles AADC Executive Director